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The Commerce Clause of the U.S. Constitution reads: “The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” It would seem obvious that, if you’re sitting on your tush minding your own business, you’re not engaged in commerce with another state, an Indian tribe, or a foreign nation. But, according to the Supreme Court, you’d be wrong. Here are the key cases—all having been decided after the New Deal—that impact today’s Court deliberations on Obamacare’s individual mandate, requiring all Americans to buy health insurance.

For more discussion of this topic, be sure to check out my live blog over at National Review, where we will be following all of the breaking news regarding today’s oral argument.

Wickard v. Filburn (1942)

In this extremely consequential case, the Court unanimously decided that Roscoe Filburn, a farmer growing wheat to feed his own chickens, was engaged in interstate commerce, because by feeding his own chickens with his own wheat, he wasn’t buying wheat from someone else, thereby affecting the price of wheat, and thereby disrupting a federal wheat price-control scheme.

“It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions,” the Court said (emphasis added). This novel legal theory—that it didn’t matter if you actually engaged in interstate commerce, so long as something you did had “substantial influence” on it—triggered a dramatic expansion of Congressional power.

Heart of Atlanta Motel v. United States (1964)

Heart of Atlanta Motel v. United States was one of the key Supreme Court decisions of the civil rights era. The owner of the Heart of Atlanta Motel primary catered to out-of-state visitors; however, it refused to rent rooms to black patrons. This violated the Civil Rights Act of 1964.

Citing Wickard, among other precedents, the Court ruled that “the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof…which might have a substantial and harmful effect upon that commerce.”

United States v. Lopez (1995)

Basically, from Wickard on, the Supreme Court ruled in every instance involving the Commerce Clause that Congress had the authority to do what it wanted, because it was regulating something that had some sort of “substantial influence” on interstate commerce. That federal winning streak ended with U.S. v. Lopez.

Alfonso Lopez, Jr. was a senior at Edison High School in San Antonio, Texas, who carried a concealed .38 caliber revolver to school. He was caught and charged with violating the Gun-Free School Zones Act of 1990, which prohibited “any individual [from possessing] a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.”

The Supremes, in a 5-4 decision, threw out this law, arguing that it had nothing to do with interstate commerce. The majority, led by Justices Rehnquist, O’Connor, Scalia, Kennedy, and Thomas, ruled that there were “three broad categories of activity that Congress may regulate under its commerce power:” (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “those activities that substantially affect interstate commerce.”

The Court noted that the gun-free school zones law “by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise,” and that the law was “not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”

Critically, the Court noted that there was a lack of a limiting principle in upholding the law: “If we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate…To uphold the Government’s contentions, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”

In the fall of 1994, two Virginia Tech football players, one named Antonio Morrison, allegedly raped a freshman. The students were not punished by the administration, and state grand jury did not find enough evidence to charge the football players with a crime. The victim then filed suit under the Violence Against Women Act.

The Supreme Court ruled that “gender-motivated crimes of violence are not, in any sense of the phrase, economic activity…our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.” They didn’t buy Congress’ argument that gender-motivated violence had substantial impact on the economy.

Gonzales v. Raich (2005)

Gonzales v. Raich is the case that gives pro-mandate advocates their best hope. In that case, a 6-3 majority including Justices Stevens, Kennedy, Souter, Ginsburg, Breyer, and Scalia, ruled that Angel Raich violated federal law when she grew marijuana in her California home for medical use. (Medical marijuana is legal in California, and Raich’s physician stated that it was medically necessary in Raich’s case to alleviate excruciating pain.)

This case was quite similar, in the Court’s eyes, to Wickard. The Court noted a “parallel concern making it appropriate to include marijuana grown for home consumption in the [Controlled Substances Act] is the likelihood that the high demand in the interstate market will draw such marijuana into that market.”

The Court ruled that “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” If they had struck the law down, they would have frustrated Congress’ regulatory scheme around marijuana distribution, just as the Wickard court would have frustrated Congress’ wheat price-control scheme.

What was surprising is that the Raich majority included Scalia, who some thought would not seek to uphold this New Deal precedent. “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce,” Scalia wrote in a concurring opinion. “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

How this all relates to the individual mandate

The Wall Street Journal's Neil Hickey captures this protestor on video, with a sign that reads: "Obamacare is just the icing on Wickard v. Filburn. OVERTURN WICKARD."

It was this series of precedents that drove Randy Barnett to conceive of the distinction between “activity” and “inactivity.” Not buying health insurance was “inactivity,” whereas feeding your chickens, or smoking pot, was “activity.”

Barnett hasn’t persuaded everyone that this distinction matters. Some of the lower courts that struck down the mandate did so, even though they didn’t agree that inactivity was a relevant distinction. On the other hand, some lower courts that upheld the mandate did so because inactivity was a form of “mental activity” that Congress had the right to regulate.